Court File and Parties

COURT FILE NO.: CV-20-130 DATE: 2024-12-09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Gary Anderson Plaintiff – and – Jeffrey Sean Pauze, Nicki Reid and Richard (Rick) Tabak Defendants

Counsel: Ryan Flewelling, for the Plaintiff Jennifer Ng, for the Defendants

HEARD: August 28, 2024

Reasons for Judgment

Justice K.A. Jensen

[1] This is a decision on the Defendants’ motion, pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”), alleging that the Plaintiff’s action is appropriate for summary judgment as it raises no genuine issue requiring a trial. The sole issue on this motion is to determine is whether the Plaintiff's action for malicious prosecution presents a genuine issue requiring at trial.

[2] In 2013, the Defendant, Richard Tabak, reported to the Ontario Provincial Police (“OPP”) that while driving his vehicle on the highways he was experiencing instances of an oncoming vehicle swerving over the median onto his side of the road. He identified the vehicles involved in these incidents as belonging to the Plaintiff. The OPP instructed Mr. Tabak to keep a log of the incidents and to avoid interacting with the Plaintiff. Mr. Tabak captured video recordings of the incidents as they occurred on April 3, April 17, and June 3, 2015.

[3] The Plaintiff was subsequently charged with criminal harassment and dangerous driving, contrary to the Criminal Code, R.S.C. 1985, c. C-46.

[4] The Defendant, Jeff Pauze, gave a statement to the OPP after the criminal charges were laid against the Plaintiff.

[5] The Defendant, Nicki Reid, cannot remember giving a statement to the OPP and was not called to testify at the preliminary inquiry into the criminal charges. A statement made by Ms. Reid to the OPP has never been produced in these proceedings.

[6] The preliminary inquiry was held before Justice K.E.M. Moore in June and December 2018. Both Mr. Tabak and Mr. Pauze testified and were cross-examined under oath at the preliminary inquiry.

[7] At the conclusion of the preliminary inquiry, Justice Moore committed the Plaintiff to stand trial on the charges.

[8] The charges against the Plaintiff were stayed by the Crown on October 2, 2019.

[9] The Moving Parties brought a motion for summary judgment because, they state, there are no issues requiring a trial in this matter. They argue that the Plaintiff has not met the high threshold for establishing malicious prosecution in this case and therefore, the action should be dismissed.

[10] The Plaintiff contends that there are issues of credibility as to whether the Moving Parties had reasonable and probable grounds to initiate criminal proceedings against him and whether the proceedings were motivated by malice towards the Plaintiff.

[11] For the reasons that follow, I find that there are no issues requiring a trial in this matter and therefore, summary judgment is granted. The evidence clearly demonstrates that the Plaintiff has not met the test for malicious prosecution. Therefore, the action is dismissed.

[12] I find that the Defendants did not initiate the criminal proceedings. After an independent investigation and consultation with the Crown prosecutor, the OPP initiated criminal proceedings. A preliminary inquiry was held following which Justice Moore committed the Plaintiff to stand trial. The weight of the evidence in this case does not support the inferences suggested by the Plaintiff that the Defendants pursued criminal prosecution against the Plaintiff to get back at him for past actions.

Background Discussion

[13] Mr. Tabak is a self-employed carpenter and contractor who has been working throughout the Rockport, Gananoque and Lansdowne communities for approximately 25 years. Both Mr. Pauze and Ms. Reid have worked for Mr. Tabak in various capacities intermittently throughout the years.

[14] The Plaintiff is a long-time resident of the Thousand Islands region.

[15] The Plaintiff and Ms. Reid were in a romantic relationship in the past but have not seen each other for about ten years. Ms. Reid obtained a peace bond against the Plaintiff as a result of allegations of harassment occurring between March 2010 and December 2012.

[16] The Plaintiff and Mr. Pauze have known of each other for many years because they were neighbours and grew up in the same area. They are not otherwise socially or professionally acquainted.

[17] Mr. Tabak did some carpentry work on the Plaintiff's properties in the past. The Plaintiff claims that he terminated the contract with Mr. Tabak because he was not happy with the quality and speed of the work Mr. Tabak was doing.

[18] In 2013, Mr. Tabak pleaded guilty to a charge of impaired driving and his driver’s licence was suspended for several months. The Plaintiff believes that Mr. Tabak thought it was the Plaintiff who reported Mr. Tabak to the police.

[19] In or around 2014, Mr. Tabak spoke with OPP Constable Sinclair about his concerns that a white GMC dual-wheel truck and a white Chevy Volt, which were owned and operated by the Plaintiff, were swerving into the oncoming lane as he was approaching in his vehicle.

[20] Constable Sinclair instructed Mr. Tabak to keep a log of the incidents and to avoid interacting with the Plaintiff.

[21] From January 23, 2014 to June of 2015, Mr. Tabak kept a log of the swerving incidents. He also video-recorded three incidents on April 3, April 17 and June 3, 2015.

[22] Mr. Tabak provided the three videos he had recorded along with his witness statement incorporating the handwritten logs he had taken from 2014 to 2015 to Constable Sinclair of the OPP.

[23] In his Will-say prepared for the prosecution's Crown Brief, Constable Sinclair declared the following:

• He undertook a year long investigation of Mr. Tabak’s allegations.
• He was in consultation with the Crown Attorney in relation to the investigation and had sought opinion, which had been granted to proceed with the charges.
• When he viewed the videos, it was clear to Constable Sinclair that Mr. Anderson's intent was to intimidate Mr. Tabak by coming across the centre line of the road. It was obvious to him that it was an intentional action.
• Upon reviewing the videos, Constable Sinclair immediately formed the opinion that the driving was dangerous. Any evasive action by Mr. Tabak would have been to take the shoulder or go into the ditch on the opposite side of the road if he had panicked.
• After reviewing the lengthy list of incidents, Constable Sinclair formed the opinion that the behaviour of Mr. Anderson was not ceasing, it was unwanted, and that it constituted criminal harassment.
• Constable Sinclair made note of a witness, Jeff Pauze, who witnessed some of the driving behaviour.
• Constable Fulford and Constable Sinclair conducted a joint interview on video with Mr. Anderson. Mr. Anderson admitted that he did not like Mr. Tabak and that the feelings stemmed from some anger over Ms. Reid. Mr. Anderson was unaware that his driving had been videotaped by Mr. Tabak.
• As a result of Constable Sinclair’s investigation, on February 22, 2017, the Plaintiff was charged with criminal harassment, and dangerous operation of a motor vehicle, contrary to the Criminal Code, R.S.C. 1985, c. C-46.

[24] After he was charged, the Plaintiff was released further to an undertaking and promise to appear that contained conditions requiring him to stay away from Mr. Tabak, Mr. Pauze and Ms. Reid.

[25] After the charges were laid, Mr. Pauze provided a witness statement dated February 24, 2017 at the request of Constable Sinclair, which described the swerving incidents he had witnessed in 2015.

[26] Along with the statement from Mr. Tabak and Mr. Pauze, Constable Sinclair also obtained a statement over the phone from another witness, Ethan Earle. Mr. Earle's statement, included in the prosecution's Crown brief, stated as follows:

We were on the Parkway near Landon's Bay. I saw Gary Anderson coming westbound on the Parkway. We were eastbound. He obviously knew Rick's vehicle. He was like playing chicken. He swerved out just before Rick passed him. I didn't expect it. I recognized the vehicle. Rick said no doubt it was Gary because he's been giving him problems for a while.

[27] In the examination for discovery, Mr. Pauze stated that he recognized the Plaintiff driving the vehicle that swerved towards Mr. Tabak’s vehicle.

[28] During the preliminary inquiry before Justice K.E.M. Moore, both Mr. Tabak and Mr. Pauze testified under oath and were cross-examined on their evidence regarding the swerving incidents.

[29] At the conclusion of the preliminary inquiry, Justice Moore indicated that having reviewed the evidence, which included the video recordings, she was satisfied that there was some evidence before the Court upon which a jury could find Mr. Anderson guilty. Justice Moore committed the Plaintiff to stand trial on the charges. The charges were subsequently stayed.

Summary Judgment Principles

[30] The Court may grant summary judgment if the Court is satisfied there is no genuine issue requiring a trial. Even if the Court determines there are genuine issues requiring a trial, the Court should determine if the need for a trial can be avoided using the powers under Rules 20.04(2.1) and (2.2). [1]

[31] Summary judgment is appropriate where the material provided on the motion "[g]ives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute." [2]

Admissibility of the Criminal Records and Police Occurrence Reports

[32] Both the Plaintiff and the Defendants adduced and made reference to various police records, occurrence reports and synopses contained in the prosecution's Crown Brief. The Defendants gave Notice under section 35 of the Evidence Act to admit these documents as a record of the act, transaction, occurrence, or events.

[33] Criminal offence records and occurrence reports are presumed to be reliable, and the first-hand observations of police officers recorded therein are generally admissible. Such records have been considered and relied on by this Court in determining summary judgment motions. [3]

[34] A report authored by a police officer is admissible as to the extent of what that officer personally observed or communicated and understood likely transpired. However, third-party statements recorded in police records are not admissible unless they fall within one of the hearsay exceptions. [4]

[35] The comments of the parties, as recorded in police records may be admitted as statements against interest. [5]

[36] I find that the records, occurrence reports and synopses in the prosecution’s Crown Brief are admissible. However, I have not considered any hearsay evidence contained in those documents that does not fit within a hearsay exception as outlined above.

Malicious Prosecution

[37] There are four necessary elements that a plaintiff must prove in a claim for malicious prosecution: i) the proceedings were initiated by the Defendant(s); ii) the proceedings have been terminated in favour of the Plaintiff(s); iii) there is an absence of reasonable and probable cause; and iv) the proceedings were brought out of malice, or another primary purpose other than that of carrying the law into effect.

[38] All four elements must be satisfied for the plaintiff to succeed. The burden is on the plaintiff to establish malicious prosecution. [6]

[39] The bar is set very high in a claim of malicious prosecution; a plaintiff has very difficult burden to meet to make out the claim. [7]

[40] In the present case, the Defendants concede that the second element of the test has been met. However, they assert that none of the other three elements are satisfied, and a trial is not needed to establish this.

Element 1: Initiation of the Proceedings

[41] Ordinarily the court will view the police officer who lays the charges as the initiator of the prosecution. [8] Even where a citizen gives his or her fullest cooperation and assistance to the police and the Crown in a criminal prosecution, there is no compelling reason to deem him or her an initiator of a prosecution where the actual prosecutor is readily identifiable and has had the ability to exercise an independent discretion whether to lay charges or not. [9]

[42] In Kefeli v. Centennial College of Applied Arts & Technology (“Kefeli”), the Ontario Court of Appeal held that unless the following three conditions apply, the court will view the police officer who laid the charges as the person who set the prosecution in motion: (1) the complainant desired and intended that the plaintiff be prosecuted; (2) the facts were so peculiarly within the complainant's knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment; and (3) the complainant procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both. [10]

[43] The Court of Appeal offered an example in Kefeli of a situation where it might be impossible for the police to conduct an independent investigation and exercise their discretion:

In the case of an offence of which the complainant and only the complainant can have knowledge, for example, a complaint of sexual assault by a person well known to the complainant and in respect of whom consent is objectively plausible, there is a compelling reason to deem the complainant as the initiator -- if he or she has procured the prosecution by giving information known to be false -- because it is not possible for the police to conduct an independent investigation and exercise an independent discretion. [11]

[44] In D'Addario v. Smith, 2015 ONSC 6652, Justice Beaudoin observed that the case law has identified very limited instances in which it will be impossible for the prosecutor or police to exercise any independent discretion in laying the charge. [12] One such case is where the defendant has knowingly withheld exculpatory information that the police could not be expected to find in all the circumstances. [13]

[45] The courts have emphasized that some measure of police discretion is possible unless the victim was the sole witness to the assault. Where there are other witnesses, the police have the discretion to interview them and to assess their credibility prior to laying a charge. [14]

[46] In D’Addario, Justice Beaudoin was dealing with a motion for non-suit, which is somewhat analogous to a motion for summary judgment. Justice Beaudoin held that even if it were accepted that the defendants’ statements to the police constable were false, that fact alone was not enough for a jury to conclude that they initiated the prosecution. Much more was required to meet the high bar of malicious prosecution. There had to be evidence that the defendants withheld exculpatory evidence; that they pressured the police in laying the charges or somehow compromised the independence of the prosecution.

[47] Similarly, in Estate of Shanthakumar v RBC, 2023 ONSC 6100, at para 70, this court stated that when the plaintiff alleges that the defendants supplied the police with false information or withheld information, they must also demonstrate that the police did not have an opportunity to conduct their own independent investigation and exercise their own independent discretion. [15]

[48] In the present case, even if it could be said that Mr. Tabak provided false information (which is far from clear), Constable Sinclair was not deprived of the opportunity to conduct his own independent investigation. He had at his disposal the video evidence of three incidents where the vehicle in question crossed the centre line. That provides a solid basis for concluding that the investigation was independent; Constable Sinclair was able to determine for himself whether the driving in question was dangerous and was not reliant upon the witnesses’ description of the events.

[49] The Plaintiff states that the identity of the driver cannot be determined from the video recordings and therefore, Constable Sinclair was reliant on the allegedly false information provided by Mr. Tabak. However, Constable Sinclair was not in fact, reliant upon Mr. Tabak’s identification of the Plaintiff as the driver of the vehicles. There were two other witnesses, Mr. Pauze and Mr. Earl, who both identified the Plaintiff as the driver who crossed the centre line while driving towards Mr. Tabak’s vehicle. Those two witnesses provided statements to the OPP.

[50] Constable Sinclair also interviewed the Plaintiff who, although denying that he had engaged in the conduct in question, acknowledged that there was “bad blood” between him and Mr. Tabak and that it related to Ms. Reid. Constable Sinclair was thus alerted to the possibility that Mr. Tabak might be using the criminal justice system as a way of seeking revenge against the Plaintiff. In fact, Constable Sinclair lives in the same area as the Plaintiff and the Defendants and stated that it was “no secret” that the Plaintiff didn’t like Mr. Tabak. Thus, Detective Sinclair had all the information he needed to conduct an independent investigation of circumstances giving rise to the charges, including the possibility that Mr. Tabak might be trying to “frame” the Plaintiff.

[51] I find that Constable Sinclair exercised his independent discretion to lay the charges against the Plaintiff. This is not one of those exceptional situations where it was impossible for the police to exercise any independent discretion in laying the charge. The investigation was undertaken over at least a one-year period, during which a significant amount of evidence, including video recordings, was obtained. There was no evidence that the video footage was fake, no evidence that Mr. Tabak withheld exculpatory information from the OPP, and no evidence that any of the Defendants undermined the independence of the police investigation. Moreover, there were several witnesses to the alleged offences. Finally, before laying the charges, Constable Sinclair consulted with the Crown prosecutor.

[52] Therefore, I find that the criminal proceedings were not initiated by Mr. Tabak, nor were they initiated by Mr. Pauze or Ms. Reid.

[53] The initiation requirement cannot be met where the defendant did not contact the police to make the complaint (that is, was not the complainant in the criminal investigation) or take an active role in the prosecution. [16] Neither Ms. Reid nor Mr. Pauze made the complaint to the OPP, nor did they take an active role in the investigation. Furthermore, Mr. Pauze did not make his statement to the OPP until after the charges were laid and therefore, could not be said to have initiated the charges.

[54] Ms. Reid’s involvement in the proceedings was minimal, at best. Her alleged statement to the OPP has not been produced and would appear to be non-existent. Although the Plaintiff stated during his police interview that he had “watched Nicki’s statement and Nicki said that she was come (sic) to the police because Rick told her to look at the statement” the meaning of that statement is unclear. The fact that Ms. Reid was named in the recognizance likely has more to do with the fact that both Mr. Tabak and the Plaintiff indicated that the bad blood between them related to Ms. Reid.

[55] For these reasons, I find that none of the Defendants initiated the criminal proceedings. Although this ends the inquiry since all the elements of the tort of malicious prosecution must be met to satisfy the test, I will go on to analyse the remaining two elements, but only with respect to Mr. Pauze and Mr. Tabak. Ms. Reid had very little to do with the matter and should not have been named as a Defendant.

Reasonable and Probable Cause

[56] The Plaintiff says there were no reasonable and probable grounds for the charges. However, the questions of whether there were reasonable and probable grounds is only an issue where the Defendants have been found to have initiated the charges. Therefore, as in the case of Ebagua v. National Rent A Car et al., 2015 ONSC 979, the assumption in assessing this element of the test is that the Defendants did initiate the charges. The following then, is a hypothetical or alternative assessment of this issue in case I am wrong on the issue of the initiation of the charges. [17]

[57] To meet this part of the test, the Plaintiff must prove that the prosecutor did not actually believe that there were reasonable and probable grounds for initiating the prosecution and that it was not objectively reasonable to believe that there were reasonable and probable grounds for initiating the prosecution. [18]

[58] The Plaintiff states that there are two key evidentiary issues that go to the issue of reasonable and probable cause: (a) the videos made by Mr. Tabak of the alleged incidents depict something totally different than what he and the other Defendants allege the Plaintiff was doing; (b) there is a third-party witness who says Mr. Pauze admitted to her that Mr. Tabak put him up to complaining to the police about the Plaintiff.

[59] Firstly, the Plaintiff states that the three videos do not show anything close to what Mr. Tabak and Mr. Pauze allege to have happened. Mr. Tabak testified at the preliminary inquiry that the three videos he took are representative of the general pattern of the incidents where the Plaintiff allegedly tried to run him off the road, and which he also confirmed during his discovery and at the cross-examination on his affidavits.

[60] The Plaintiff pointed to Mr. Pauze’s statement at discovery that he witnessed an oncoming vehicle going over the centre line so that half of it was over the line ("middle of the car was in the middle of the line"). He also said the oncoming vehicle stayed like that for some time ("more than a swerve"). However, the Plaintiff states that the three videos show a vehicle coming in the opposite direction and barely touching the centre line (not crossing it), and then only for a fleeting instant. The driver of the approaching vehicle in the videos was not playing chicken or crossed into the oncoming lane, in the Plaintiff’s view.

[61] The Plaintiff states that this is evidence that Mr. Pauze was not telling the truth and misled the police into believing that the Plaintiff was driving dangerously.

[62] The problem with the Plaintiff’s argument is that the police, prosecutor and preliminary inquiry judge all viewed the video evidence and formed the opinion that the totality of the evidence could lead to a finding of dangerous driving. Regardless of what was said during the civil discovery, the video evidence spoke for itself.

[63] The Crown prosecutor took Mr. Tabak through the video evidence. Mr. Pauze gave evidence at the preliminary inquiry and was cross-examined on that evidence. The Plaintiff may have his own view of what the video evidence shows, but that does not give rise to an inference that Mr. Pauze was lying in his description of the other incidents.

[64] The Plaintiff also puts forward the evidence of a witness, Janet Laronde, who came forward after the preliminary inquiry who, he says, will testify that Mr. Pauze told her that Mr. Tabak persuaded Mr. Pauze to lie about the vehicle swerving into the oncoming traffic. This person, who allegedly worked with Mr. Pauze at the Thousand Island Addictions and Treatment Centre (the Centre), will apparently say that Mr. Pauze told her he was never in the car with Mr. Tabak when the alleged swerving happened. Ms. Laronde stated during examinations that Mr. Pauze said Mr. Tabak told him he had to make a statement.

[65] The difficulty with the Plaintiff’s position on this point is that at its best, the evidence could only establish that Mr. Tabak put Mr. Pauze up to lying about his presence in the car when the swerving incidents were alleged to have occurred. However, this would not be sufficient to establish that Mr. Tabak lacked reasonable and probable grounds to lay a complaint. Mr. Tabak might well have sought Mr. Pauze’s support for the charges, but this does not necessarily mean that Mr. Tabak was lying about the swerving or the identity of the person swerving.

[66] Nevertheless, if I give the Plaintiff the benefit of the doubt on this point and find that there may be a triable issue as to whether Mr. Pauze (and Mr. Tabak) lacked reasonable and probable grounds for initiating the criminal proceedings, I may then exercise my power under clause 2 of subrule 20.04(2.1) of the Rules to make a credibility determination.

[67] Mr. Pauze has provided affidavit evidence on this motion in which he vehemently denies making a statement to anyone at the Centre to the effect that Mr. Tabak told him to lie about being in the car with him during the swerving incidents. Mr. Pauze states that he worked in maintenance at the Centre for only three months and did not get to know anyone there very well.

[68] Mr. Pauze’s evidence with respect to the alleged statement that Mr. Tabak told him to lie was unshaken on cross-examination.

[69] In another affidavit in support of the motion, Mr. Pauze states that he was in Mr. Tabak’s car on two occasions when the swerving incidents occurred and that he recognized the driver as the Plaintiff. He deposed in his affidavit that the evidence he gave under oath at the Plaintiff’s preliminary inquiry describing the swerving incidents he experienced as a passenger in Mr. Tabak’s car in 2015, was, and remains, true to the best of his knowledge and belief.

[70] Ms. Laronde was cross-examined on her affidavit in which she stated that Mr. Pauze had told her that he was not in Mr. Tabak’s vehicle. Ms. Laronde testified that she never really got to know her co-workers enough to talk to them about anything personal. She stated that she was not close at all with Mr. Pauze; she would make him a sandwich in the morning, and he would go on his way. Ms. Laronde was unable to remember the context of the conversation. She stated that the whole conversation was only about five to eight minutes. Ms. Laronde stated that Mr. Pauze told her that he was not in the car when the swerving incidents happened but was told by Mr. Tabak to say that he was. Then, she stated, Mr. Pauze “went on his merry way with his sandwich back to work”.

[71] Ms. Laronde also stated that after Mr. Pauze told her that he had made a false statement about not being in the car with Mr. Tabak, she did not ask him any further questions. She went straight to her boss, Mr. Chris Fagan, and told him about the “confession”. She stated that she knew that Mr. Fagan and the Plaintiff knew each other.

[72] I find that Ms. Laronde’s evidence with respect to Mr. Pauze’s statement is not credible. I find it highly implausible that Mr. Pauze would have made this very serious confession to someone whom he barely knew in a brief conversation in the kitchen and then have gone on his “merry way”. Ms. Laronde’s evidence on other points was also not credible.

[73] For example, Ms. Laronde testified that she gave Mr. Pauze a breakfast sandwich every day for free. She testified that she had the discretion to do this even though she acknowledged that there was a memo that said only those employees who worked double shifts could have a free meal. In contrast, Mr. Pauze testified that he had to pay for his meals, including breakfast. Ms. Laronde’s evidence on this point was not internally consistent, nor was it plausible.

[74] Mr. Pauze gave a statement to the OPP that he was in Mr. Tabak’s car and that he witnessed the swerving. This statement was consistent with his testimony at the preliminary inquiry. He provided affidavits in support of the present motion in which he deposed that he was in the car and witnessed the swerving. He stated that he did not tell Ms. Laronde that Mr. Tabak had told him to lie. Mr. Pauze was cross-examined on those affidavits and his evidence was unshaken. I find therefore, that his evidence that he was in the car with Mr. Tabak and witnessed the swerving incidents is credible. There is no basis for a trial on this issue.

[75] In conclusion, I find that if Mr. Pauze and Mr. Tabak could be said to have initiated the criminal proceedings (which is highly unlikely), they had reasonable and probable grounds to do so. They were in the car when the swerving incidents happened and identified the Plaintiff as the person who was doing the swerving.

Malice

[76] With respect to malice, the Plaintiff must show that the actual motive for the prosecution was improper or demonstrate that the prosecution can only be explained by imputing a wrong motive. [19] A bald allegation of malice is insufficient. [20]

[77] The Plaintiff alleges that there is credible evidence that Mr. Tabak harbors ill will towards the Plaintiff. It started when the Plaintiff fired Mr. Tabak from contracting jobs at his properties and intensified when Mr. Tabak was arrested and convicted for drunk driving and lost his driving privileges, causing him significant personal and professional inconvenience.

[78] The Plaintiff believes that Mr. Tabak thought he had reported him for drunk driving, leading to his arrest, conviction and the temporary loss of his driver's license. This allegedly happened before Mr. Tabak complained to the police about the Plaintiff trying to "run him off the road".

[79] Apparently, there were also issues with respect to potential jealousy regarding Ms. Reid, which allegedly fueled the ill will between Mr. Tabak and the Plaintiff.

[80] Finally, an individual named Dave Lindsay testified that some time before 2015 (that is, before the Plaintiff was charged), Mr. Tabak said to him that "Gary [the Plaintiff] will get what Gary has got coming to him." Mr. Lindsay also testified that Mr. Tabak spoke negatively about the Plaintiff. The Plaintiff believes that this is further evidence of the ill will that Mr. Tabak had towards him before the criminal charges were laid.

[81] I find however, that it is simply not the case here that the prosecution can only be accounted for by implying malice to the Defendants. The prosecution can be accounted for by the OPP’s independent investigation, the Crown prosecutor’s opinion and the finding made by Justice Moore at the preliminary inquiry that there was an evidentiary basis for committing the matter to trial.

Conclusion

[82] There is no genuine issue for trial in the present case. It is clear, on the basis of the record before me and without making any findings on contested facts or drawing inferences, that the Defendants were not the initiators of the criminal proceedings. As such, a trial is wholly unnecessary and the motion for summary judgment is granted.

[83] Ms. Reid had little to no involvement in the matter. Even if Mr. Tabak and Mr. Pauze were the initiators of the proceedings, there is no need for a trial to establish the other elements of the tort. If they initiated the proceedings, Mr. Tabak and Mr. Pauze had reasonable and probable grounds upon which to initiate a complaint and to participate in the criminal proceedings. If there was malice that partially motivated the prosecution, it was not the only basis for the proceedings.

[84] The motion for summary judgment is granted and the action dismissed.

Costs

[85] The Defendants were entirely successful on the motion and are therefore, presumptively entitled to their costs. I find that there is no basis upon which to deny the Defendants their costs.

[86] The Defendants seek their costs of the motion and the action on an elevated basis.

[87] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules. These include the principle of indemnity for the successful party (s. 57.01(1)(0.a)), the expectations of the unsuccessful party (s. 57.01(1)(0.b)), the amount claimed and recovered (s. 57.01(1)(a)), and the complexity of the issues (s. 57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice. [21]

[88] The Defendants have not explained the reason that they are seeking “elevated costs”. I see nothing in the proceedings that would justify an increase in the costs beyond partial indemnity rates. Indeed, in my view, the awarding of costs on a partial indemnity basis in this case properly balances the competing considerations of access to justice and providing compensation to the successful party.

[89] The amount claimed on a partial indemnity basis for both the action and the summary judgment motion is $40,851.36. I have reviewed the hours and rates in the Costs Outlines submitted by the Defendants. They are reasonable and unexceptional. The Plaintiff claimed significant damages from the Defendants, each private citizens, for malicious prosecution arising from charges of criminal harassment and dangerous driving laid by the OPP in February 2017. One of the Defendants, Nicki Reid, had very little to no involvement in this matter and should not have been named as a defendant. Mr. Pauze only became involved when asked to provide a statement by the OPP after the charges had been laid. The bar is very high for the tort of malicious prosecution. Therefore, the risk of losing on a motion for summary judgment is significant.

[90] The Plaintiff would have been well aware of the risk he was taking in proceeding with this litigation. His own costs for the summary judgment motion alone were $21,485.04. That does not include the work that was done taking the action up to the conclusion of examinations for discovery. Therefore, the Plaintiff could reasonably have expected to pay significantly more than $21,000 for the Defendants’ costs if he lost the motion and the action was dismissed.

[91] Accordingly, I find that it is fair and reasonable for the Plaintiff to pay the Defendants the aggregate sum of $40,851.36 in costs inclusive of disbursements and HST.

Justice K.A. Jensen Released: December 9, 2024